Estate Planning Blog Articles

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What Is Elder Law?

With medical advancements, the average age of both males and females has increased incredibly.  The issue of a growing age population is also deemed to be an issue legally. That is why there are elder law attorneys.

Recently Heard’s recent article entitled “What Are the Major Categories That Make Up Elder Law?” explains that the practice of elder law has three major categories:

  • Estate planning and administration, including tax issues
  • Medicaid, disability, and long-term care issues; and
  • Guardianship, conservatorship, and commitment issues.

Estate Planning and Administration. Estate planning is the process of knowing who gets what. With a will in place, you can make certain that the process is completed smoothly. You can be relieved to know that your estate will be distributed as you intended. Work with an experienced estate planning attorney to help with all the legalities, including taxes.

Medicaid, Disability, and Long-Term Care Issues. Elder law evolved as a special area of practice because of the aging population. As people grow older, they have more medically-related issues. Medicaid is a state-funded program that supports those with little or no income. The disability and long-term care issues are plans for those who need around-the-clock care. Elder law attorneys help coordinate all aspects of elder care, such as Medicare eligibility, special trust creation and choosing long-term care options.

Guardianship, Conservatorship, and Commitment Matters. This category is fairly straightforward. When a person ages, a disability or mental impairment may mean that he or she cannot act rationally or make decisions on his or her own. A court may appoint an individual to serve as the guardian over the person or as the conservator the estate, when it determines that it is required. The most common form of disability requiring conservatorship is Alzheimer’s, and a court may appoint an attorney to be the conservator, if there is no appropriate relative available.

Reference: Recently Heard (May 26, 2021) “What Are the Major Categories That Make Up Elder Law?”

Does New COVID Relief Bill have an Impact on Seniors?

Money Talk News’ recent article entitled “6 Ways the New COVID-19 Relief Law Affects Retirees” provides a look at some of the changes retirees can expect from the new legislation.

  1. Stimulus payments for dependent adults. A first noticeable way in which the third round of stimulus payments is different from the first two is that dependents of all ages can qualify. Therefore, a household that supports a disabled senior will receive an additional $1,400 payment for that senior, if the household claims the person as a dependent on their federal income tax.
  2. Funding for ailing pension plans. The American Rescue Plan Act includes several terms concerning pension plans, one of which calls for the Treasury Department to transfer funds to the Pension Benefit Guaranty Corp. so that certain financially troubled multiemployer pensions can continue to pay out full benefits. That will help more than one million Americans. The PBGC operates insurance programs for single-employer and multiemployer pensions.
  3. Eligibility for the earned income credit for 2021. One of several changes the legislation made to the earned income tax credit — which is for working taxpayers with low to moderate incomes — is striking the maximum age of 64 for the 2021 tax year. As a result, seniors who work may be eligible to claim the earned income credit, when they file their taxes in 2022. The usual eligibility requirements for the credit require you to have at least one qualifying child or, if you don’t have a qualifying child, you must be between 25 and 65.
  4. Higher taxes for some gig workers. However, this COVID-19 relief law isn’t all good news for all taxpayers. Retirees (and anyone else) who earn some extra money with gig work might face more taxes in the future. This will help offset the cost of the American Rescue Plan Act, generating an estimated $8.4 billion in additional tax revenue for the federal government through fiscal year 2031. Companies with gig workers may report more payments than in the past, so the IRS will have a better idea of who is earning income from gig-economy jobs. This change may come as a surprise for some who’ve underreported income in the past.
  5. Tax relief for forgiven student loans. Under the Act, student loan debt that’s forgiven in 2021 through 2025 can be excluded from the debtor’s gross income. That will shield the canceled debt from federal taxation. Prior to this, such canceled debt generally was considered taxable income by the IRS. This will apply to student loan debtors of all ages. However, that group includes a growing number of retirees, as 20% of all student loan debt — around $290 billion — is owed by people age 50 and older, according to a 2019 AARP report. That’s five times more since 2004.
  6. New or expanded tax credits for health premiums. Retirees who aren’t yet 65 and as a result don’t have Medicare health insurance, might benefit from tax credits in the Act that help eligible individuals with two other types of health insurance. The law creates a refundable, advanceable tax credit for COBRA continuation coverage premiums. It is for people who are eligible for COBRA from when the Act was signed into law (March 11) and Sept. 30, 2021.

Reference: Money Talk News (March 16, 2021) “6 Ways the New COVID-19 Relief Law Affects Retirees”

What are Most Costly Mistakes with Social Security?

Motley Fool’s recent article entitled “5 Social Security Oversights That Could Cost You Thousands” says that these five Social Security mistakes could cost you thousands in your retirement.

  1. Claiming Social Security early while you’re still working. You can claim your Social Security retirement benefit as young as age 62, but your benefits will be permanently reduced when compared with the amount you would receive if you waited until your full retirement age. Social Security will also penalize you for continuing to work while collecting benefits, if you are younger than your full retirement age.
  2. Failing to claim Social Security by your 70th birthday. Once you hit age 62, your benefit increases the longer you wait to claim, until you reach 70. You don’t have to claim your benefit by your 70th birthday, but there is no more benefit for waiting at that point.
  3. Delaying past your full retirement age to claim Social Security spousal benefits. If you’re claiming Social Security benefits based on your own income record, it’s smart to wait past your full retirement age to start taking benefits. However, if you’re claiming based on your spouse’s benefits, there’s no benefit to delay beyond your full retirement age to claim. As a result, married couples of similar ages who have vastly different earned incomes have a dilemma: for you to claim spousal benefits, your spouse also has to have begun claiming benefits based on his or her own earnings record. This combination makes it less worthwhile for the primary breadwinner spouse to wait to collect benefits, if the spouse is expecting to take spousal benefits.
  4. Taxes on Social Security benefits are not adjusted for inflation. Originally, Social Security benefits weren’t taxed. However, in 1984, the government started taxing Social Security benefits once a person’s combined income reached $25,000. Even now, the income level where Social Security starts to get taxed is still at $25,000. Because there is no adjustment for inflation, this makes more of people’s Social Security income taxable. This easily costs even moderate-income retirees thousands of dollars of spendable income over the course of their retirements.
  5. “Tax free” income counts toward making Social Security taxable. Even traditionally tax-free sources of income, like the interest from in-state municipal bonds, is included in the calculations to see how much of your Social Security will be considered taxable. Therefore, seniors who own tax free municipal bonds as part of their retirement portfolio may be surprised to find that those bonds are what’s causing their Social Security to be taxed. Seniors who find themselves in that situation may want to reevaluate their choice to be invested in those tax-free municipal bonds.

Despite how simple Social Security may appear, these five situations show how mistakes can cost thousands of dollars.

Reference: Motley Fool (March 14, 2021) “5 Social Security Oversights That Could Cost You Thousands”

living longer

What are the Scariest Statistics for Retirement?

Think Advisor’s recent article entitled “11 Scariest Retirement Statistics: 2020” says that there is a lack of preparation, savings difficulty and general uncertainty that American retirees are facing. Here are those scary stats:

  1. Just a quarter of Americans are on a trajectory to maintain their lifestyles in retirement. The other 75% will need to work longer, move to lower-cost housing and cut spending to maintain their standard of living, largely due to the coronavirus downturn.
  2. The Social Security trust funds would be empty by 2023, without the payroll tax. While President Trump let employers temporarily defer the employee portion of payroll taxes, he said the deferred taxes could later be forgiven, or the cut made permanent. When he signed the order, he vowed to “terminate the tax,” if reelected. Republican lawmakers subsequently debuted a plan to fund any shortfalls from the Treasury.
  3. Social Security benefits will be decreased by 21% if the trust fund runs out. Congress will have to intercede, or it could happen 10 years from now, if not sooner.
  4. Those born in 1960 will have a big problem because of the complicated formula the Social Security Administration uses to calculate benefits. Pre-retirees born in 1960 will see a nearly 15% cut to their lifetime benefits from Social Security when it’s time to collect. If the pandemic suppresses the economy into 2022, those cuts will impact more pre-retirees. The impact to their Social Security benefits will also be permanent.
  5. The 2021 Social Security cost of living adjustment, or COLA, will be just 1.3%. Retirees should note that rising health care costs and a potential 6% increase in Medicare Part B premiums may absorb that benefit increase.
  6. More than 50% of Americans think the economy is worse now than in 2008, with 51% of Americans seeing the COVID slowdown as worse than the 2008 recession. A survey from Edelman Financial Engines also found that 26% had withdrawn money from retirement or savings for living expenses.
  7. About 60% of retirement savers have fallen behind, according to a TIAA study. Among these, 30% said it was directly due to the pandemic.
  8. Internet searches for “move out of the U.S.” have increased 16 times. International Living magazine says it had seen the jump in search traffic around the phrase since May. A total of 20% of respondents in a survey it conducted also said they wanted to move due to the pandemic. However, just 45% cited a desire to save money.
  9. Approximately 42% of investors sold stock, and most of them (88%) of them regretted it. In response to the drop in stocks in mid-March last year, 42% of investors in a survey by MagnifyMoney sold at least one stock and 24% sold all their holdings. About 69% of those who sold stock at the start of the pandemic greatly regretted it, and 19% said they were somewhat regretful.
  10. Roughly 80% of older Americans don’t understand retirement planning and don’t know the basics of how to successfully plan for a financially secure retirement, according to a study by The American College of Financial Services. The survey also found only 30% of respondents had a plan in place to fund long-term care needs, and just one in four actually had long-term care insurance.
  11. About 3 million workers may have been driven into early retirement due to the pandemic. From March to August of 2020, 2.8 million older workers might have been pushed out of their jobs prematurely, with economic turmoil and poor health making it hard for them to resume their careers elsewhere, according to by the Schwartz Center for Economic Policy Analysis at the New School. The report found that 38% of unemployed older adults stopped looking for work and left the workforce, and an additional 1.1 million were expected to do likewise.

Reference: Think Advisor (Oct. 30, 2020) “11 Scariest Retirement Statistics: 2020”

Am I a Senior Citizen?

Here are some milestones that could signal that you have become a senior citizen, according to US News and World Report’s recent article entitled “When Do You Become a Senior Citizen?”

Eligibility for Senior Benefits. There are exact ages when you qualify for a host of retirement benefits. In some ways, society makes it very clear when we become senior citizens. For example, we know that at age 65, we qualify for Medicare. Social Security benefits can begin as early as age 62 or as late as age 70. And senior discounts begin at some retailers and restaurants for those who are 55 or older.

If you’re 50 or older, you’re eligible to become an AARP member.

Spending Retirement Savings. Retirement accounts are developed to motivate workers to save for their retirement. Thus, accounts like a 401(k) plan or IRA usually impose a penalty for early withdrawals. If you take money out before age 59½, you’ll typically be hit with a 10% penalty. You may consider yourself a senior citizen when you no longer have to concern yourself with that 10% penalty for early withdrawals from your IRA or 401(k).

However, when you hit a certain age, you will need to take required minimum distributions from retirement accounts. Also called “RMDs,” these withdraws from traditional IRAs and 401(k) plans must be taken each year after age 72. Once you reach 72, you may think of yourself as a senior citizen because you have to start taking your RMDs from your retirement account.

Retirement. After you retire from working every day, your family and friends may consider you to have attained senior citizen status. The transition might bring on a feeling of meaning and purpose. Once you reach a certain age, you look back and go through self-reflection.

As you stop going to the office every day, you might feel a sense of gratitude for the years you were able to work and pursue a passion.

Health Issues. Medical conditions like arthritis, hypertension, or hearing loss may cause you to feel like you have reached senior citizen land. A person that is battling several age-related medical issues can feel olde,r just by the number and type of medications or medical devices they use.

It’s not easy to feel young when you are being fitted with a walker or hearing aid, and you’re lining up pill bottles every morning and evening. Feeling fatigued or ready for bed by 9 p.m. might be signals that you are getting older.

Reference: US News and World Report (Jan. 27, 2021) “When Do You Become a Senior Citizen?”

Should I Sell My Life Insurance Policy?

It is quite common to buy life insurance. It may have been to protect your family financially or as a vehicle to provide liquidity for estate taxes. As we grow older and laws change, it is critical to determine if your policy has outlived its intended purpose. The traditional strategy of “buy and hold” no longer applies to the ever-changing world. Today, it may be a good idea to consider selling your policy.

Forbes’ recent article entitled “What You Should Know Before Selling Your Old Life Insurance Policy” explains that a lesser-known alternative to abandoning or surrendering a policy is known as a life settlement. This gives the policy owners the chance to get a much bigger cash lump sum, than what is provided by the life insurance carrier’s cash surrender value.

Life settlements are not new. Third-party institutional buyers have now started to acquire ownership of policies, in exchange for paying the owner a lump sum of cash. As a consequence, the policy owner no longer needs to make future premium payments.

The policy buyer then owns the life insurance policy and takes on the responsibility of future premium payments. They also get the full death benefit payable from the life insurance carrier when the insured dies.

Research shows that, on average, the most successful life settlement deals are with policies where the insured is age 65 or older. Those who are younger than 65 usually require a health impairment to receive a life settlement offer.

Knowing what your life insurance policy is worth is important, and its value is based on two primary factors: (i) the future projected premiums of the policy; and (ii) the insured’s current health condition.

Many policy owners don’t have the required experience with technical life expectancies, actuarial tables and medical knowledge to properly evaluate their life settlement value policies. This knowledge gap makes for an imbalance, since inexperienced policy owners may try to negotiate against experienced and sophisticated policy buyers trying to acquire the policy at the lowest possible cost.

To address this imbalance, the policy owner should seek help from an experienced estate planning attorney to help them with the process to sell the policy for the highest possible price.

If you have an old life insurance policy that’s collecting dust, ask an experienced estate planning attorney to review the policy’s importance and purpose in your portfolio. This may be the right time to turn that unneeded life insurance policy into cash.

Reference: Forbes (Jan. 26, 2021) “What You Should Know Before Selling Your Old Life Insurance Policy”

Am I Missing Retiree Tax Breaks?

Seniors frequently can miss tax-saving opportunities. In many cases, it’s simply because they just don’t know about them, says Kiplinger’s recent article entitled “The Most-Overlooked Tax Breaks for Retirees.” Let’s look at some these:

A Larger Standard Deduction. When you turn 65, the IRS offers you a bigger standard deduction. For 2020 returns, a single 64-year-old gets a standard deduction of $12,400 ($12,550 for 2021). A single 65-year-old gets $14,050 in 2020 ($14,250 in 2021). That $1,700 will make it more likely that you’ll take the standard deduction rather than itemizing. If you do, the additional amount will save you more than $400 if you’re in the 24% bracket. Couples in which one or both spouses are age 65+, also get larger standard deductions than younger taxpayers.

Medicare Premium Deduction. If you become self-employed when you leave your job, you can deduct the premiums you pay for Medicare Part B and Part D, plus the cost of supplemental Medicare (Medigap) policies or the cost of a Medicare Advantage plan. It isn’t subject to the 7.5%-of-AGI test that applies to itemized medical expenses. However, you can’t claim this deduction if you’re eligible to be covered under an employer-subsidized health plan offered by either your employer (if you have retiree medical coverage, for example) or your spouse’s employer (if he or she has a job that offers family medical coverage).

Spousal IRA Contribution. You must have earned income to contribute to an IRA, but if you’re married, and your spouse is still working, he or she can contribute up to $7,000 a year to an IRA that you own. Provided your spouse has enough earned income to fund the contribution to your account (and any deposits to his or her own), this is an option.

The RMD Workaround. Required minimum distributions (RMDs) weren’t required in 2020 (due to COVID), but retirees taking RMDs from their traditional IRAs in 2021 and beyond may have an extra option for meeting the pay-as-you-go demand. If you don’t need the RMD during the year, wait until December to take the money. You can ask your IRA sponsor to hold a large part of it for the IRS—enough to cover your estimated tax on both the RMD and your other taxable income as well. If your RMD is more than large enough to cover your tax bill, you can keep your cash safely in its tax shelter most of the year and still avoid the underpayment penalty.

Reference: Kiplinger (Dec. 29, 2020) “The Most-Overlooked Tax Breaks for Retirees”

sole beneficiary sharing

What If a Sole Beneficiary Wants to Share?

That doesn’t sound like a bad idea, right?

However, Morningstar’s recent article entitled “3 Strategies to Consider When Sole Beneficiaries Want to Share the Wealth” says that there are a few hurdles to clear, such as the IRA administrator’s policies, income tax consequences, transfer tax consequences and the terms of the decedent’s will.

Here’s a scenario: Uncle Buck dies and leaves his IRA to his niece, Hope. Buck’s will leaves all his other assets equally to all three of his nieces: sisters Hope, Faith and Charity. However, the three agree that Buck’s IRA should be shared equally, like the rest of the estate. What do they do?

The Easy Way. Hope keeps the IRA, withdraws from it when she wants (and as required by the minimum distribution rules), pays the income tax on her withdrawals and makes cash gifts to Faith and Charity (either now or as she withdraws from the IRA) in an agreed upon the amount. It would mean giving her two sisters ⅓ of the after-tax value of the IRA. There is no court proceeding or issue with the IRA provider. There are no income tax consequences because Hope will pay the other girls only the after-tax value of the IRA distributions she receives. However, there’s a transfer tax consequence: Hope’s transfers would be considered as gifts for gift tax purposes because she has no legal obligation to share the IRA with the other nieces. Any gift over the annual exclusion amount in any year ($15,000 as of 2020) will be using up some of Hope’s lifetime gift and estate tax exemption. This easy answer may work well for a not-too-large inherited IRA.

The Expensive Method: Reformation. If there is evidence that Buck made a mistake in filling out the beneficiary form, a court-ordered reformation of the document may be appropriate. Therefore, if Hope, Faith, and Charity have witnesses who would testify that the decedent told them shortly before he died, “I’m leaving all my assets equally to my three nieces,” it could be evidence that he made a mistake in completing the beneficiary designation form for the IRA. The court could order the IRA provider to pay the IRA to all three girls, and the IRS would probably accept the result. By accepting the result, the IRS would agree that the nieces should be equally responsible for their respective shares of income tax on the IRA and for taking the required distributions, and that no taxable gift occurred. However, as you might expect, the IRS isn’t legally bound by a lower state court’s order. If the reformation is based on evidence, the parties may want the tax results confirmed by an IRS private letter ruling, which is an expensive and time-consuming task.

The In-Between. The final possible solution is a qualified disclaimer. Hope would “disclaim” two thirds of the IRA (and keep a third). A qualified disclaimer (made within nine months after Buck’s death) would be effective to move two thirds of the IRA (and the income taxes) from Hope without gift taxes. A qualified disclaimer involves a legal fee but no court or IRS involvement. As a result, it can be fairly simple and cost-effective. However, there may be an issue: when Hope disclaims two thirds of the IRA, that doesn’t mean the disclaimed share of the IRA automatically goes to the other nieces. Instead, the disclaimed portion of the IRA will pass to the contingent beneficiary of the IRA. Hope needs to see where it goes next, prior to signing the disclaimer. If there’s no contingent beneficiary named by Buck, the disclaimed portion will pass to the default beneficiary named in the IRA provider’s plan documents. That’s typically the decedent’s probate estate. If the disclaimed portion of the IRA passes to the uncle’s estate, and Hope is a one-third beneficiary of the estate, she will also need to disclaim her estate-derived share of the IRA. A “simple disclaimer” can be complicated, so ask an experienced estate planning attorney to help.

Even if Hope disclaims two thirds of the IRA, so that it passes to Faith and Charity through the estate, the other girls won’t receive as favorable income tax treatment as Hope. Hope inherits her share as designated beneficiary, while an estate (the assumed default beneficiary), which isn’t a designated beneficiary, can’t qualify for that.

Reference: Morningstar (Aug. 13, 2020) “3 Strategies to Consider When Sole Beneficiaries Want to Share the Wealth”